Citation Nr: 1541021
Decision Date: 09/24/15 Archive Date: 10/02/15
DOCKET NO. 11-11 176 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Columbia, South Carolina
THE ISSUES
1. Entitlement to service connection for hypertension.
2. Entitlement to an initial compensable disability rating for bilateral hearing loss.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
D. M. Donahue Boushehri, Counsel
INTRODUCTION
The Veteran served on active duty from October 1979 to November 1984.
This appeal to the Board of Veterans' Appeals (Board/BVA) is from a June 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO).
The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required.
REMAND
In a January 2010 VA audiology consultation, the examiner noted the Veteran has a bilateral, sensorineural hearing loss - mild to moderate in in the right ear from 1.4 kHz, and mild from 2 kHz in the left ear. Speech discrimination was mildly depressed in the right ear and within normal limits in the left ear. The note indicates that the audiogram is available, but not included in the progress note. As the audiogram is relevant to the Veteran's claim for an increased rating, the Board finds a remand is necessary. Furthermore, as it has been more than five years since the Veteran's last VA examination and the claim is being remanded on another ground, the Board finds the Veteran should be afforded a new VA examination.
The Veteran has two distinct periods of service. His service from October 1979 to October 1983 is considered honorable. However, for his period of service from October 1983 to November 1984, the Veteran is considered to have been discharged under dishonorable conditions for VA purposes. Nonetheless, within one year of separation from his first period of service, in a July 1984 service treatment record, the examiner noted a blood pressure reading of 156/96. During an undated separation examination for "chapter," the examiner noted blood pressure readings of 140/92, 140/90, and 145/100. The Veteran asserts he was diagnosed with hypertension at this time. The first available treatment records are dated in May 2001 and indicate a history notable for hypertension. Given the Veteran assertion that hypertension was diagnosed just after separation from service, and the first available treatment record indicates a known history of hypertension, the Board finds a remand for any relevant outstanding treatment records is necessary.
As stated above, there is evidence of symptoms which may be related to the Veteran's eventual diagnosis of hypertension within one year of his separation from honorable active service. The Veteran has not been provided a VA examination, and a VA examination is necessary in this case. The Board notes that
Accordingly, the case is REMANDED for the following action:
1. Request the Veteran provide the names, addresses and approximate dates of treatment of all medical care providers, VA and non-VA, who have treated him for his claimed hypertension prior to May 2001. After the Veteran has signed the appropriate releases, those records should be obtained and associated with the claims folder.
Additionally, obtain the VA audiogram dated in January 2010.
Appropriate efforts must be made to obtain all available VA treatment records. All attempts to procure records should be documented in the file. If the AOJ cannot obtain records identified by the Veteran, a notation to that effect should be inserted in the file. The Veteran is to be notified of unsuccessful efforts in this regard, in order to allow him the opportunity to obtain and submit those records for VA review.
2. Following completion of the above action, schedule the Veteran for appropriate VA examination to ascertain the current severity and manifestations of his service-connected hearing loss in accordance with VA protocols.
3. Schedule the Veteran for a VA examination by a physician with appropriate expertise to determine whether the Veteran developed hypertension OR SUCH SYMPTOMS OF HYPERTENSION WITHIN THE PERIOD OCTOBER 1979 TO OCTOBER 1983, EVEN IF DIAGNOSED AS A DISORDER DURING THE PERIOD OF SERVICE CONSIDERED AS OTHER THAN HONORABLE FROM OCTOBER 1983 TO NOVEMBER 1984.
The following considerations must govern the examination:
a. The claims file and a copy of this remand must be made available to the physician, who must acknowledge receipt and review of these materials in any report generated.
b. The physician must review all medical evidence associated with the claims file. In particular, the Board draws the physician's attention to the statements from the Veteran and the Veteran's undated separation examination from his second period of service.
c. All indicated tests and studies must be performed.
d. The examiner must take a complete history from the Veteran. If there is any clinical or medical basis for corroborating or discounting the credibility of the history provided by the Veteran, the examiner must so state, with a complete explanation in support of such a finding.
e. The examiner must provide an opinion as to whether the Veteran has hypertension that is due to his active service or that manifested as evidenced by associated symptomatology DURING OR WITHIN THE PERIOD FROM OCTOBER 1979 TO OCTOBER 1983, EVEN IF FORMALLY DIAGNOSED THEREAFTER.
f. The examiner must provide a complete explanation for his or her opinion(s), based on his or her clinical experience, medical expertise, and established principles.
g. If the examiner is unable to render the requested opinion(s) without resort to speculation, he or she must so state. However, a complete explanation for such a finding must be provided, such as whether there is inadequate factual information, whether the question falls within the limits of current medical knowledge or scientific development, whether the cause of the condition in question is truly unknowable, and/or whether the question is so outside the norm of practice that it is impossible for the examiner to use his or her medical expertise and training to render an opinion.
4. After the above has been completed, review the claims file and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action must be implemented. If any report does not include adequate responses to the specific opinions requested, it must be returned to the providing examiner for corrective action.
5. Thereafter, and after undertaking any additional development deemed necessary, readjudicate the issues on appeal. The AOJ should consider that under 38 C.F.R.
§ 3.307(c) pertaining to "chronic diseases" such as hypertension, the lack of a diagnosis during the presumptive period of one year IS NOT FATAL TO THE CLAIM.
Instead, in order for the claim to be granted, there must be shown by acceptable medical or lay evidence characteristic manifestations of the disease to the required degree, followed without unreasonable time lapse by definite diagnosis. Symptomatology shown in the prescribed period may have no particular significance when first observed, but in the light of subsequent developments it may gain considerable significance. CASES IN WHICH A CHRONIC CONDITION IS SHOWN TO EXIST WITHIN A SHORT TIME FOLLOWING THE PRESUMPTIVE PERIOD BUT WITHOUT MANIFESTATIONS WITHIN THE PERIOD, should be developed to determine whether there was symptomatology which in retrospect may be identified and evaluated as manifestation of the chronic disease to the required 10-percent degree.
STATED ALTERNATIVELY, THE AOJ MUST CONSIDER WHETHER THERE IS ANY EVIDENCE OF SYMPTOMS OF HYPERTENSION OR ITS ONSET FOR THE PERIOD OF HONORABLE SERVICE FROM OCTOBER 1979 TO OCTOBER 1983 AND DURING THE PERIOD OF SERVICE CHARACTERIZED AS OTHER THAN HONORABLE FROM OCTOBER 1983 TO NOVEMBER 1984, DESPITE NOT FORMALLY DIAGNOSED UNTIL SOMETIME DURING OR AFTER THE PERIOD OF SERVICE CONSIDERED AS OTHER THAN HONORABLE.
If any benefit sought on appeal remains denied, in whole or in part, the Veteran and his representative should be provided with a Supplemental Statement of the Case and be afforded reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order.
The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).
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VITO A. CLEMENTI
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2014).